The Police Law Blog

Wrongfully Terminated Police Lieutenant Files Federal Lawsuit Against Town

By John V. Berry, Esq., www.berrylegal.com

In an interesting wrongful termination case, filed on January 20, 2012 in U.S. District Court for the District of Massachusetts, a police lieutenant, in the Town of Wareham, Massachusetts has filed a lawsuit against his town alleging a number of improprieties in his firing.  In particular, the police lieutenant involved had been terminated for the alleged improper use of his town-issued cell phone, in addition to allegedly using his position as a police officer to sell alarm systems. 

Apparently, the backstory in this case involved elected officials who apparently were not fond of the lieutenant related to a promotion issue and sought to have him disciplined by the Town Administrator.  The Town Administrator asked the Chief of Police to review the allegations at issue and he refused to imposed serious discipline as a result of a lack of a telephone policy within the Department.  As a result, the Town Administrator was apparently placed on leave by the Board of Selectmen for not taking stronger action against the lieutenant.    

Of important note is the fact that the lieutenant appealed his termination to the Civil Service Commission who reviewed the termination and unanimously voted that the lieutenant had been wrongfully terminated.  The police lieutenant was given his position back and awarded back pay for his losses.  The police lieutenant returned to his position in June, 2011. For the actions associated with the wrongful termination, the police lieutenant filed suit and is seeking compensatory and punitive damages in addition to attorney fees.  

A copy of the Complaint is attached here.  Download Bliss v Wareham

 

Representing Federal Police Officers in Arbitration or at the Merit Systems Protection Board (MSPB)

By John V. Berry, Esq., www.berrylegal.com

 

Our law practice has represented numerous federal law enforcement officers around the United States over the past several years.  One of the most difficult issues that a federal law enforcement officer (Federal LEO) can face is the potential termination of their law enforcement employment.  Federal LEO careers can also be significantly damaged if an officer receives a sustained suspension of a serious nature or length. 

This article addresses the issue of how to approach an appeal of these types of removals and significant suspensions in the forums generally available for Federal LEOs.  The forums in which you appeal can be different, so it is important to know the differences if a Federal LEO finds themselves having to choose between the 2 different types of appeals.

The Two Principal Options for Removal/Suspension LEO Appeals: Arbitration or MSPB

When a Federal LEO receives a copy of a final federal agency decision sustaining a removal or significant suspension they generally have 2 options if they want to appeal the decision that has been made.  The first option is to file an appeal of the removal/suspension with the Merit Systems Protection Board (MSPB).  The second option is to appeal the removal/suspension decision through the Federal LEOs union in the grievance/arbitration procedure.  

There are other potential legal options out there when applicable, such as the filing of a whistleblower complaint with the Office of Special Counsel (OSC) or perhaps a complaint alleging discrimination or harassment through the federal agency’s Equal Employment Opportunity (EEO) office, but the focus of this article are the main two options for a Federal LEO in addressing the substance of the misconduct allegations against him or her. 

A Federal LEO will only be able to exercise the right to appeal their adverse action in one forum; they will have to choose between seeking arbitration and filing an MSPB appeal.  Because of this, it is important to weigh the processes available before deciding on a course of action. 

Sometimes a Choice Between Arbitration and MSPB, Sometimes Not

While most Federal LEOs have a choice between forums, some do not.  While almost all career (non-probationary) Federal LEOs have the right to appeal a removal or serious suspension to the MSPB, not everyone has the right to take their case to arbitration.  In order to have the right to go to arbitration, a Federal LEO must be represented by a federal sector union that agrees to take the case to arbitration.  If there is no union, then there is generally no right to file for arbitration review of serious discipline.  If this is the case, then the choice between filing with the MSPB and filing for arbitration is pretty simple.

If a Federal LEO has the right to file for arbitration through an existing union, then one must consider whether the union will permit their disciplinary case to go to arbitration.  Unions control the ability to go to arbitration, not the officer, so whether a case can go forward to arbitration is up to them.  One important note is that whichever process is elected first is the one that the Federal LEO will have to see through so it is important to be careful when making decisions before submitting letters, grievances or other paperwork to the agency regarding the disciplinary action at issue. 

Seek Information from the Agency in Arbitration and MPSB Appeals

Both arbitration and the MSPB have procedures to assist Federal LEOs in attempting to obtain information for use in their appeals. At the MSPB, more typical discovery procedures (like in regular court procedures) govern.  There are depositions, production of documents requests, interrogatories, etc.  In general, the MSPB tends to have better discovery procedures (especially the use of depositions) than those available in arbitration. 

In arbitration, a Federal LEO is represented by the union either through a shop steward or an attorney (with the approval of their union).  The union has the ability to obtain documents relevant to a disciplinary case on behalf of the affected officer.  This ability comes through the submission of what is known as an "information request" through 5 U.S.C. § 7114(b).  The one key difference between the two forums (MSPB and arbitration) is that there generally is no right to take depositions in preparation for arbitration proceedings. 

MSPB Hearings vs. Arbitration Hearings

There are differences between MSPB hearings and arbitration hearings.  For the most part both the MSPB and arbitration tend to be less formal than regular court proceedings.  In our experience, arbitration is the less formal of the two.    

In arbitration, the Arbitrator is the judge who will issue an opinion in the case.  Typically, arbitrators tend to be very experienced attorneys in labor and employment law that serve as arbitrators and will be mutually selected by the parties.  In MSPB cases, the proceedings are run by an appointed Administrative Judge that is assigned randomly.

Generally, it takes about 120 - 150 days from filing to reach an MSPB hearing. It will take a few months after that hearing, usually, for an officer to obtain a ruling by the judge.  In arbitration, the timeline can be shorter or longer (depending on what procedures the parties have in their collective bargaining agreement and the dates that the arbitrator may have available for the hearing).

The MSPB hearing is generally held at the MSPB's local regional office, whereas an arbitration hearing can be scheduled any place that the parties agree upon (they usually take place at the agency). Both proceedings allow for the use of witnesses and examination and cross-examination by counsel.  

In our experience, MSPB proceedings, from start to finish take a bit less time than arbitration proceedings.  While the MSPB tends to have better discovery procedures, arbitrators tend to be more open to reversing disciplinary cases in general.

Closing Thoughts

We advise potential Federal LEO clients to seek counsel to help them evaluate their individual cases to determine the best type of proceeding, either arbitration or MSPB, for their case.  Both types of proceedings can be valuable for a Federal LEO facing serious discipline.  

 

Seeking Copies of Documents to Defend Police Officers Against Internal Investigations and Disciplinary Actions

By John V. Berry, www.berrylegal.com

When a police officer or supervisor comes to our Firm and is faced with a pending investigation or a potential disciplinary action, there are a number of considerations to take into account when we prepare to defend them.  The first consideration is usually to make sure that we have all of the documents necessary in order to defend the police officer / supervisor under investigation or who has been accused of alleged misconduct.

Police officers and supervisors have a number of tools at their disposal in seeking information or documents in representing them.  These tools vary somewhat based on whether the police officer or supervisor is employed by state, local or Federal employers, and whether the officer or the officer’s union (when applicable) requests the information on their behalf.

Types of Documents Sought in Officer Defense Cases

No matter what stage a police officer or supervisor is at during a departmental administrative investigation (anywhere from notification to the completion of the administrative inquiry) it is very important for the individual or law firm representing them to seek out key documents in defense of the allegations and to do so as early in the process as possible. The reason why we do so as early as possible in cases is that documents can easily be lost or misplaced later in the process. 

The first type of document that should be requested when facing a potential investigation, if it is possible to obtain, is a copy of the administrative complaint which lists the alleged misconduct under investigation.  Sometimes the rules of individual police departments or a police union’s collective bargaining agreement (where applicable) provide that an officer or supervisor investigated regarding misconduct be provided a copy of the investigative complaint within so many days.  Often times, even when this is required, it still is not provided unless one asks. 

The next types of documents that we usually try and obtain in an officer’s defense case are the relevant General Orders or Department Orders governing the alleged conduct which is the subject of the investigation or complaint.  A police officer or supervisor will generally have access to these documents through their employment and may have been issued a set of them by their department when they began employment.   These documents are critical in that they define the conduct at issue and assist us in planning the officer’s defense. 

The third type of documents that are usually important to request in regards to administrative investigations are any written or recorded statements by witnesses, followed by copies of correspondence/emails between witnesses and/or department employees.  These types of documents or records are usually made available later in the administrative process, following the completion of the administrative investigation.  The key is to obtain these materials as early in the process as possible. 

Mechanisms for Obtaining Evidence for Administrative Defense

Depending on where a police officer or supervisor is employed (local, state, federal), there are a few additional ways in which one can attempt to seek information and/or documents related to these investigations.  An officer’s options generally depend on where the individual is employed and also whether or not they are employed in a unionized department.    

These tools for seeking information include:

1.            Collective Bargaining Agreement (CBA) Requests:  These types of requests are based upon provisions within applicable police union CBAs which provide officers access to certain types of information that is required to be provided under the terms of an individual CBA.  For example, many police union CBAs require that the department provide a copy of all complaints filed against an officer or supervisor within a certain number of days. 

2.            Union Information Requests:  Typically, these kinds of requests can be initiated by federal sector law enforcement officers through their unions. There is a provision, under 5 U.S.C. § 7114(b) of the U.S. Code which provides that a federal sector union can seek copies of information (documents, data, recordings) which are relevant to their defenses and/or grievances. In other public sector departments (i.e. Local (city) or State), similar laws can also provide for police union access to relevant information on behalf of police officers.  Therefore, if the officer is employed in the union sector, this can provide an important right to obtain certain types of information for use in officer defense. 

3.            Freedom of Information Act Requests:  Freedom of Information Act (FOIA) requests can be sent by any private citizen under 5 U.S.C. § 552 to a federal agency or federal police department, seeking information that might be helpful in cases.   Many states and local jurisdictions have their own versions of FOIA, so be sure to consider these avenues when seeking relevant information.

4.            Due Process Requests:  These types of requests are based upon the constitutional right of public employees to obtain documentation relied upon by a public employer in disciplining a public sector (federal, state or local) police officer.  It is based on the Fifth Amendment of the United States Constitution and can provide a basis for relevant information that can be used to defend police officers and supervisors when they are defending against allegations lodged against them.

5.            Discovery Requests:  Discovery requests can seek needed information from a variety of litigation contexts.  For instance, if an officer or supervisor in the federal sector is disciplined or removed from service, often times you can take an appeal of the action to the Merit Systems Protection Board (MSPB).  When such an appeal is filed, an officer has a number of important rights in seeking documents.  Many states have similar types of appeals boards like the MSPB where discovery can be used in that process.  This principle can also apply when a police officer or supervisor has been sued or has filed a lawsuit against the department relating to misconduct.  In such a case, an officer or supervisor might be able to use the civil process to obtain important documents in their respective cases.

Conclusions

When a police officer or supervisor is facing a disciplinary investigation or action, there are many methods in which to attempt to seek documents in order to defend them.  As explained, there are many potential methods available for seeking these documents, but the key is to work on doing so as early in the process to ensure the best defense possible for the police officer or supervisor.  If you have individual questions about your individual situations, please contact our law firm at www.berrylegal.com to schedule a time to discuss them.     

 

The Investigatory Interview for the Police Officer and Police Supervisor

By John V. Berry, www.berrylegal.com

One of the most frequent issues that tends to come up in our law firm’s law enforcement officer practice area is the issue of how best to handle police department investigations against officers and supervisors.  Police officers and supervisors, when they are first notified of a pending investigation, should immediately consider consulting an attorney or their local police union (FOP, etc.). 

INITIAL CONSIDERATIONS AFTER NOTIFICATION

Depending on the police department involved (state or federal) (small or large department), there can be many different types of varying practices with respect to internal police investigations.  Often times only the larger (more than 50 members typically) police departments have the resources to maintain their own internal affairs unit.  For smaller departments, in the absense of an internal affairs unit, there can either be designated police officers and supervisors for the purpose of these investigations or a permanent investigator assigned departmentwide.

CONSIDERATIONS BEFORE GOING INTO THE INVESTIGATORY INTERVIEW

The first area of consideration should always be for the police officer or supervisor to consider what exactly is being investigated by the department before they go into the interview.  Sometimes the case under investigation involves the person being interviewed and sometimes it involves others in the department where the person is merely called as a witness to the events in question.  Usually, it is my experience that most of the time police officers and supervisors have at least some idea about why they have been called in for an investigatory interview.    

In other words, an officer of police supervisor may have some idea of the matter under investigation from a recent event, such as a difficult traffic stop or arrest, or a particularly difficult interaction with a member of the public.  Other times, someone within the department will give advance information to the person being investigated (either officially or unofficially).  Then there are other times in which an officer or police supervisor will have little idea about why they have been called in for an interview.

One of the most common occurrences involves a citizen complaint following an arrest or the issuance of a traffic ticket.  Many individuals will attempt to file a complaint against an officer in the hopes of helping their defense later on.  The difficulty with police department investigations lies in the fact that regardless of the issue complained of, that they generally are required to conduct an investigation into every complaint, no matter how baseless.  There is also no statute of limitation which cover these types of police investigations, so timeliness tends not to be a bar to a department having to conduct an investigation in most types of cases. 

No matter the circumstances, it is important to take any Internal Affairs Unit or departmental interview seriously. If the investigation at issue involves a serious issue, such as an alleged or potential criminal activity, misuse of force, theft or dishonesty, it is especially important to speak to an attorney as quickly as possible to obtain representation and legal advice.  This is especially the case if there is the potential for any criminal investigative issues.  If so, it is important that the police officer or supervisor refrain from talking about the issues involved with co-workers to protect themselves. 

THE INVESTIGATORY INTERVIEW

Typically, an investigatory or Internal Affairs interview is conducted with 2 or more investigators, a tape recorder and a Garrity/Kalkines statement for an officer or supervisor to sign. Usually, there is enough advance notice of the interview in order for the officer to obtain a union or legal representative, which the investigator should not generally have a problem with.  If there are any issues with the attendance of a legal or union representative during an interview, Counsel can get involved and attempt to resolve these issues prior to the meeting.

Most labor, department, municipal and federal regulations provide officers with the ability to be accompanied by a labor or legal representative. When the investigatory interview begins, the parties at the interview usually identify themselves on audio tape (most common) or before the court reporter (much less common) and the police officer or supervisor is asked to review and sign a statement ordering them to answer all questions truthfully, under the penalty of termination.  These are often referred to as an officer’s Kalkines or Garrity rights statements (named after two key cases involving public employee rights).  They have the effect of requiring the officer to answer all of the questions involved truthfully, but also can protect an officer or supervisor’s rights should the matter involve a criminal question. 

Problems at the beginning of the interview process can arise when a department requests that an officer provide a voluntary statement (i.e. not being ordered to provide a statement).  Usually, in this type of situation, the officer or supervisor walks into the interview and the questions start right away before the officer is provided a statement of rights.  This can be viewed as a voluntary interview and is generally to be avoided.  In this type of situation, if anything is considered to be criminal in nature, the officer can be viewed as providing voluntary information.   In general, voluntary statements provide little or no protection to a police officer or supervisor that is interviewed. United States v. Friedrick, 842 F.2d 382 (D.C. Cir. 1988). If an officer is deemed to have given a voluntary statement, then it might be used against them later in a criminal prosecution or administrative disciplinary matter.

Once the investigatory interview begins, most interviews usually (depending on the incident and details in the complaint) generally last anywhere between 30 minutes to a few hours. Representation during this stage provides some general protections. Many officers and supervisors are protected against general harassment during interviews through their collective bargaining agreements or agency regulations. An officer’s attorney or representative can usually protect against this sort of treatment in the case that it occurs.

It is also important to have a legal representative present during an interview because they can also help clarify questions asked of an officer or supervisor if they are unclear, in addition to providing moral support to the officer in what can be a difficult situation. An attorney can also provide legal guidance in serious matters under investigation in the interview process. Often times I find that it is very important to take breaks during an interview to properly advise a client on an area of questioning as sometimes the direction of an investigation can change midway through an investigatory interview.

FOLLOWING THE INTERVIEW & CLOSING THOUGHTS

When the investigatory interview with the department investigator concludes, most of the time an officer or supervisor is cautioned against speaking to other individuals or co-workers (besides their attorney or union representative) about the interview.  Be very cautious about speaking about the case with anyone other than your counsel or union representative (only your counsel in criminal matters), because it is common for investigators to start secondary investigations based on violations of this order. 

To put it briefly, it is always important to be extremely cautious when a police officer or supervisor is facing an investigative interview. As always, I recommend legal representation from the first notification of the interview process, either through your union or an attorney.   Counsel can often provide on the spot protection from overly aggressive investigators, and moral support as you proceed through the process.  Questions regarding strategy for investigatory interviews should be directed to an experienced attorney as individual circumstances require specific legal advice.

Terminated Police Officer Wins Reversal in Court

By John V. Berry, Esq., www.berrylegal.com

The Court of Appeal for California, in Anderson v. City of Los Angeles, Super. Ct. No. BS120430 (Mar. 30, 2011), recently affirmed the decision of a trial court to reinstate a police officer with the Los Angeles Police Department (LAPD) who had been terminated for neglecting to request compensation for having worked overtime.  The trial court in this case found that no other officers within LAPD had ever been disciplined for failing to seek payment for overtime that they had worked and ordered the officer reinstated. 

On appeal, the LAPD argued that they should be permitted to re-evaluate the penalty to be assessed on the officer, instead of a blanket reinstatement and sought reversal.  The Court of Appeal in this case disagreed, finding:

“Significantly, the gravamen of this charge is the failure to request compensation for working overtime, not working unauthorized overtime. In fact, the charging allegation did not differentiate between authorized and unauthorized overtime. Although Anderson did admit that she committed misconduct by working unauthorized overtime and that she did not ask to be paid for the overtime she worked, as the trial court found, defendants have failed to point to a statute, rule or regulation, in force at the time the alleged misconduct was committed, that makes it an act of misconduct for a police officer to work overtime, whether authorized or unauthorized, and not ask to be compensated for it. Although Order 20 issued September 3, 1999 does state that overtime is to be reported on a specified form, it does not advise employees that the failure to do so is misconduct or will subject them to discipline and possible termination.

The trial court determined that the conduct charged against Anderson in count 1 did not constitute misconduct in the first instance. It is for this reason it concluded that Anderson's guilty plea, along with her deposition testimony, did not support the Board of Right's finding of guilt on count 1. Because we conclude that substantial evidence supports the trial court's determination with regard to count 1, and defendants do not challenge the trial court's decision to grant writ relief as to counts 2 and 3, we have no basis for disturbing the judgment of the trial court.”

Id. 7- 9 (emphasis added).

CONCLUSION

The Anderson case illustrates the point that police departments that either invent new types of charges, or selectively prosecute administrative charges that have not been charged for similar conduct by others in the past, subject themselves to possible reversal in court, arbitration or before local merit systems review boards on appeal.  Departments that seek to charge new types of misconduct should first develop new policies coverage these issues, bargain where appropriate with police unions, and then fully explain and train police officers on issues that could rise to charges of misconduct.   

Police Officer Fitness for Duty Examinations - Considerations for Officers and Supervisors

By John V. Berry, Esq., BERRY & BERRY, PLLC, www.berrylegal.com

Federal and state law enforcement officers often times, as a result of taking leave, or the perception of supervisors are sometimes ordered to take fitness for duty (FFD) examinations.  FFD examinations can be related to both physical and/or mental health concerns by a police department and can prompt a thorough review by the department’s physicians. 

It is important for police officers and police supervisors to be aware of the risks associated with the FFD exam. It is this very type of examination that can lead to an officer’s long term placement on sick leave, forced retirement and/or potential termination from employment with one’s police department.   In other words, it is important to take these examinations seriously. 

When facing this type of examination, each police officer and/or supervisor is highly recommended that they obtain legal advice as the FFD process unfolds. 

BACKGROUND 

The essence of the FFD examination is that the police department or agency sees some reason or justification for questioning whether or not a law enforcement officer is healthy enough to perform his/her duties.  There are usually provisions within a police department’s general orders covering the internal procedures for requiring and taking such a fitness for duty examination. The procedures also vary among different states, in addition to those employed as federal law enforcement officers.

In federal sector law enforcement, for example, there are federal regulations which govern FFD examinations.  These rules are contained within the Code of Federal Regulations (CFR) at 5 C.F.R. § 339.301.  The CFR contains a series of regulations governing how federal agencies require federal law enforcement officers and other employees to take FFD examinations, how these examinations are paid for, and how the individual federal agency involved must handle the FFD process. 

In terms of state and local police agencies, the FFD process varies based on each individual jurisdiction, but there are a number of similarities between the different jurisdictions.  For instance, FFD examinations may raise disability discrimination and family medical leave act issues as most jurisdictions bar these types of behaviors by police departments to one degree or another.

STRATEGIES FOR HANDLING FFD EXAMINATIONS

There are a number of strategies for dealing with FFD examinations.  In the FFD cases that we handle in our law practice, we always urge law enforcement officers and supervisors to seek legal advice because each individual situation varies based upon the individual facts, laws, regulations and general orders that may apply. 

However, the following are some general tips to keep in mind as you begin the FFD process.

Talk to an Attorney: Meet with an attorney about your FFD issues ahead of time (before the examination process begins).

Reasonable or Retaliatory Request: Try to determine whether or not your FFD examination was triggered by a reasonable request or if it is based on other facts (such as retaliation or personality issues).  This will be critical to determine the correct approach to be taken by the law enforcement officer’s attorney.

Hire Your Own Medical Professional:  Give some consideration to having your own medical professional evaluate you regarding any department concerns which may arise.  Keep in mind that if there is no merit to the ordering of an officer’s FFD exam, that they will be referring the officer to their retained doctor, who may not conduct a fair examination.  Often times it is important to keep this in mind with respect to FFD issues.  Many physicians are on retainer and generally tend to find in favor of their employer on the issues.

Have your Attorney Coordinate with the Department’s Physician:  Involve your attorney in the medical examination process.  Often times it may be helpful to have your attorney deal with the police department’s physician. 

Take Notes of your Meeting with the Department Physician: Following an examination by your FFD physician (if they are paid by the officer’s police department), while your memory is fresh make sure to take notes of what occurred during your visit and what the physician may have told you during the examination. 

Seek a Copy of the Department Physician’s Medical Report: Attempt to obtain a copy of the medical findings or report from the physician that examined the officer.  Often times many physicians will attempt to either deny sending the officer a copy of his own medical report or claim that they cannot do so.  If this gets contentious, I would recommend having counsel on hand to speak with the physician and go over your rights as a patient. 

If you Receive a Negative Report from the Department's Physician Quickly Consult your Own Professional to Rebut it:  If the officer has not already sought an examination from their own medical provider, as outlined in Paragraph 3, above, and the officer receives a negative report from the police department’s physician, it may require quick action by the officer to get a new medial opinion to refute whatever the department’s physician claims.

CLOSING

In closing, I recommend that any police officer or supervisor facing an unjustified or questionable FFD examination seek legal advice early.  Doing so may prevent significant employment problems later on after the process has taken hold. 

 

 

 

Giglio for Law Enforcement Officers & Credibility Determinations

By John V. Berry, Berry & Berry, PLLC, WWW.BERRYLEGAL.COM 

“Giglio” is a term that is well known amongst law enforcement officers, but it is often generalized to the extent that the specific meaning and scope of the Giglio case is sometimes misplaced.  I thought that I would provide a short refresher on Giglio and how it impacts police officers today.  In short, Giglio is a term often associated with the issue of law enforcement officer credibility in court.  

The Giglio Case 

The case itself, Giglio v. United States, 405 U.S. 150 (1972), was a landmark decision which began to apply a number of duties of disclosure to prosecutors in criminal cases  as it pertained to government witnesses (and chiefly among them police officers).    The Supreme Court, in Giglio, along with a few other related and following cases essentially established a doctrine where prosecutors acquired a duty to disclose evidence about the credibility of government witnesses (typically, police officers) which had to be turned over following a request by defense counsel. The principal holding in Giglio was explained by the Supreme Court when it held that when the reliability of a given witness may be determinative of either guilt or innocence nondisclosure of evidence affecting credibility could become reversible error.

A Few Cases Following Giglio 

The Giglio principle was further expanded some 4 years later in 1976 by the Supreme Court in United States v. Agurs, 427 U.S. 97 (1976) which recognized a duty by prosecutors to disclose exculpatory information, like the type that involves officer credibility issues in prosecutions.  In Agurs, the Supreme Court held that the prosecution had to provide the information even in the absence of defense counsel’s request for such information. 

Next, the Court's decision in Kyles v. Whitley, 514 U.S. 419 (1995) further added to the burdens that prosecutors faced in terms of credibility determinations that could likely face police officers as witnesses.  The Court in Kyles
imposed an affirmative duty on a prosecutor "to learn of any favorable evidence known to the others acting on the government's behalf, including the police," and a resulting duty to disclose that evidence to the defense. In this case, the defendant was convicted of first-degree murder but was given a new trial after it was discovered that the prosecutor had not divulged exculpatory evidence, even though the prosecutor was unaware of the evidence, which was in police files. The Kyles Court emphasized that even if a prosecutor had been unaware of the exculpatory evidence that regulations can be established to carry the prosecutor's burden and to ensure communication of all relevant information on each case to all the attorneys involved. 

The Reality of Giglio and it’s Effect on Law Enforcement Officers

These court cases and others have slowly built up the requirement that law enforcement officers be truthful in all of their dealings.  When evidence of untruthfulness in cases (or in some jurisdictions evidence of untruthfulness in general, see Lewis v. United States, 408 A.2d 303 (D.C. 1979) (creating a prosecutorial “Lewis list” within the District of Columbia for general acts of untruthfulness and other issues)) comes out in today’s litigious society, prosecutions in some criminal cases can be made more difficult through the forced disclosure of these rules. The Supreme Court has essentially created a string of decisions which require prosecutors to learn of and then to disclose to criminal defense attorneys information which will then be used to attempt to impeach law enforcement witnesses in criminal cases.   

One of the difficulties with credibility information is that it is not consistently provided by each law enforcement agency to local prosecutors.  This difficult often stems from internal politics within a police department.  In some cases, this type of internal politics decides which members of a department get turned in to prosecutors as unreliable and which do not (usually those with a friend in the Chief’s office).  This has led to inconsistent practices internally in police departments and often times disciplinary actions or security clearance issues with respect to the truthfulness of individual police officers and supervisors.

Some police departments have responded to these issues with different policies.  Some departments have attempted to enforce a strict truthfulness policy and terminate officers who violate them; this often times leads to officer appeals and reversals of terminations because departments inevitably misread the case law and make legal mistakes. Still other departments attempt to place the police officer or supervisor in an administrative assignment (often times another mistake related to a lack of legal guidance about the weight that these issues have.  One other issue that has also occurred is the inconsistent disclosures in Giglio situations by local prosecutors.  There are a number of situations in which different prosecutors have led to an inconsistent application of Giglio (often times less experienced prosecutors make mistakes about the application of Giglio to their criminal prosecutions) causing an otherwise good case to be dropped due to a misunderstanding of Giglio. 

Closing Thoughts on Giglio and the Police Officer

This is a continuing and as yet unresolved issue.  It appears that the courts are still refining Giglio and departments have generally played catch up in responding to new court decisions as they are issued.  Police officers facing truthfulness issues should consult an attorney as early in the process as possible to determine how best to proceed when facing these types of disciplinary or impeachment issues. 

 

 

Federal Law Enforcement Officers & the Douglas Factors in 2010

By John V. Berry, Esq. of Berry & Berry, PLLC

When Federal Law Enforcement Officers (LEOs) are subjected to disciplinary actions by their federal police departments and/or related agencies, our law practice frequently uses a legal approach to attempt to mitigate (lessen) the penalty in these proposed disciplinary actions.  The purpose of this article is to take a look at the current application, as of 2010, of the Douglas (mitigation) factors to Federal LEOs facing discipline in the federal sector.  The attempt by defense counsel to reduce the severity of the penalty focuses on an attempt by the defense to mitigate proposed penalties in such cases.

Mitigation, for Federal LEOs, is almost always referred to in the context of the Douglas factors, a landmark case in federal personnel law issued in 1981, which specifies 12 factors which can be used to mitigate or to aggravate a proposed disciplinary penalty.  Douglas v. Veterans Affairs, 5 M.S.P.R. 280, 305-306 (1981). 

What are the Douglas Factors?

The Douglas factors are used to mitigate or aggravate disciplinary actions for Federal LEOs and other federal employees that are proposed for disciplinary action.  The factors originally relate back to 1981 in the Douglas case, where the Merit Systems Protection Board examined what issues might come up to mitigate disciplinary penalties.  Typically, the issue of mitigation comes up when an officer receives a proposed disciplinary action or termination and I have to come into the officer's case and argue that the penalty being proposed must be mitigated.

To take a step back for the moment, it is key to understand that the Douglas factors are the second part of the disciplinary process; the first being whether or not the allegations themselves are true and can be proven.  In the context of federal disciplinary actions, there are always these two parts to a Federal LEO’s disciplinary defense: (1) disprove the facts; and (2) contest the penalty as unreasonable in light of the Douglas (mitigating) factors.  While these Douglas factors apply generally to all Federal employees, this article takes a look at how they apply specifically to federal law enforcement in the year 2010. 

To start, when evaluating Douglas factor arguments for Federal LEOs, the first step is to consider which of these mitigating factors might apply so that one can argue for a lesser penalty.  It is important to note that there are 12 individual factors for consideration and that they should all be reviewed for possible use in a case.   

THE 12 INDIVIDUAL DOUGLAS FACTORS

Under each of these 12 factors I have noted whether they are used primarily in mitigation (reduce the disciplinary penalty) or in aggravation (used by departments to increase penalties in these types of disciplinary cases that Federal LEOs are sure to face at some point:

(1) The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;

a. This factor tends to be used in aggravation by federal police departments. 

b. Typically, in disciplinary actions, departments will use this factor to attempt to increase disciplinary penalties for officers based on their perceived view of the seriousness of the charges.  For example, this comes up a lot in charges involving Giglio (candor/truthfulness charges) where police departments attempt to increase disciplinary penalties on this basis.

(2) The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position (mainly used by departments for the aggravation of law enforcement officer/supervisor penalties in disciplinary cases);

a. This factor is used quite commonly by federal police departments in an attempt to aggravate or raise the penalties against federal police officers. For example, see McManus v. Dep’t of Justice, 66 MSPR 564, 566 (1995) (federal correctional officers must conform to a higher standard of conduct than non-law enforcement employees).

b. Most often, a proposed disciplinary or adverse action against a federal law enforcement officer will attempt to tie their police officer position to the disciplinary charges at issue in order to increase a disciplinary penalty. Police officer's misconduct “was extremely serious and inconsistent with his duties and responsibilities as a law enforcement officer.” Watson v. Dep’t of Justice, 64 F.3d 1524, 1530 (Fed. Cir. 1995) (“Law enforcement officers are held to a higher standard of conduct than are other federal employees . . . .”).

c. The extent of this higher standard for federal law enforcement, for purposes of the Douglas factors can vary with the type of federal law enforcement official involved, i.e. supervisory or non-supervisory.  Kirk v. Dep’t of Navy 58 MSPR 663, 671-72 (1993).

(3) The employee’s past disciplinary record (mainly used by departments for the aggravation of law enforcement officer/supervisor penalties in disciplinary cases);

a. This factor can be used as mitigating in nature or as an aggravating factor.  The key in mitigation is to show that the federal police officer does not have a disciplinary record, or in the alternative, does not have one involving similar alleged misconduct as the one currently alleged.

(4) The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;

a. This is a significant mitigating factor for federal law enforcement officers, and one that we argue quite often on their behalf.  Typically, in federal police officer cases, this is one of the best methods for an officer to attempt to mitigate disciplinary penalties by focusing on their background, successful career and performance, commendations from the department or the public and their awards.

(5) The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties;

a. This Douglas factor is almost always used by federal police departments to attempt to aggravate a proposed penalty.  However, the allegations of loss of trust towards federal law enforcement officers must be specific and detailed.  Departments tend to make mistakes in regards to this particular Douglas factor in disciplining police officers.

 (6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses;

a. Typically, this factor is one that we argue in favor of mitigation on behalf of the officer involved.  In particular, it is usually a given, depending on the particular federal sector police department involved, that some individuals on the department will have been charged and found guilty of similar administrative misconduct.  If there are prior cases involving similar charges where the police official or officer involved received a lower penalty than what is being proposed for the officer pending discipline, we usually argue this as a basis for mitigation and seek a lower penalty for the officer that we are representing.

(7) Consistency of the penalty with any applicable agency table of penalties;

a. Typically, this is a factor argued by the Agency to justify their penalty.  These tables of penalties are usually broad and can cover many kinds of broadly categorized misconduct charges.  Therefore, this Douglas factor is usually argued by management to support a particular penalty or their position in a case.

(8) The notoriety of the offense or its impact upon the reputation of the agency;

a. This is a factor used to aggravate the penalty.  Typically used in cases where a large number of individuals are aware of the disciplinary charges in the case or where the news media becomes aware of the situation and reports on it.  I have found that this factor is commonly misused to attempt to raise the penalty in a disciplinary case.

(9) The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;

a. This is a significant mitigating factor that is used quite frequently in our firm’s defense of federal law enforcement officers.  Typically, it is clear that an alleged charge relates to duties or actions that the officer was never tried in or perhaps received training to the opposite of what the charges and/or allegations contend.  This factor is key to mitigating discipline when we represent federal law enforcement officers on appeal in either the Merit Systems Protection Board or in arbitration.

(10) The potential for the employee’s rehabilitation;

a. This Douglas factor is important in disciplinary action cases for federal law enforcement officer clients.  The potential for rehabilitation is a critical factor relied upon by administrative judges and arbitrators in mitigating discipline in cases involving federal law enforcement officers.  Often times this factor comes into play with federal law enforcement officer cases where the officer has reported their own misconduct, before the Department itself is aware of any wrongdoing.  If this has occurred, there is a strong legal argument for mitigating discipline in the case for the officer. 

(11)  Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and

a. This is a significant factor for mitigation for a federal law enforcement officer, and a general catch all mitigating factor.  See Brown v. Dep’t of Treasury, 61 MSPR (1994).  It can be used to explain a particular set of misconduct as involving personality issues and conflicts between an officer/supervisor and their superior or other miscellaneous mitigating factors in a case.

(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

a. This factor is very significant in that there might very well be other types of penalties, other than the one proposed, for an officer.  Often times, one could argue that an officer or law enforcement supervisor’s penalty should be mitigated and that training be provided instead.  The key is to stress that the penalty being proposed does not fit the misconduct in terms of addressing future misconduct.  This is becoming a major factor in cases presently. 

Of these 12 Douglas factors, there are a number of them that come up more often than others, given the nature of the federal law enforcement officer profession.  In practice, it is important to highlight the law enforcement professional years of service, performance record, citizen and department based commendations.  

There are many more details that can up in an individual officer's case. Please contact our law firm at www.berrylegal.com if you have any questions about how these Douglas factors might affect a case or situation that is applicable to you.  Remember, it is always key to obtain legal counsel when evaluating a particular Douglas factor argument because each factor applies differently in individual cases.